Re: How does it work in civil-law countries? (Was something else)

[Carl Oppedahl <carl@oppedahl.com>]

At 12:17 PM 01/14/97 -0500, Vince Wolodkin wrote:
>Carl Oppedahl wrote:
>> 
>> At 09:34 AM 01/14/97 +0100, Paul Svensson wrote:
>> 
>> >Could anyone on the IAHC care to comment on what their plans are to
promote
>> >this intent in countries that do not base their legal system on case law?
>> 
>> Could any critic of the IAHC proposal who has offered a concrete
>> alternative (understanding that such critics are in fact quite rare)
>> explain how *their* alternative is supposed to work in such countries?
>
>Well, many here would like RFC 1591 basically followed and would like
>the CORE/IAHC etc to just stay out of it. 

Sorry, but we seem to have two definitions of "just stay out of it"
floating around here.

By "just stay out of it" we might mean (1) "IAHC and the registry avoid
deciding who wins in a particular conflict".  Or we might mean (2) "IAHC
avoids any mention of trademarks in its proposal".

Under definition (1), it seems you have no gripe with IAHC's present
proposal.  It does not decide who wins in a particular conflict.  Of
course, if RFC 1591 were followed, that would also satisfy definition (1).
Definition (1) is important, for example because of NSI's blunder in
implementing its second, third, and fourth policies, in each of which it
decides who wins.

Under definition (2), well, that is just plain silly.  IAHC ought to say
what thinks about trademarks, even if all it says is that decisions about
trademarks will be left to the courts (which is true of the present IAHC
proposal and is true of RFC 1591).

Returning to the the question as presented, the question was, can a
proponent of RFC 1591 how RFC 1591 is supposed to work in civil-law countries?

(notable silence)

The plain fact is, there are 180 or so court systems in the world, each
with its own rules and ways of deciding cases.  I made clear back in August
of 1996 what I recommend for the Internet and for trademark domain name
issues, and anyone who wishes to read it may do so at
<http://www.patents.com/nsi.sht>.  My position paper has been there for
four months now, something like that -- longer than the IAHC proposal,
longer than the INTA proposal.  Basically I favored RFC 1591.  But I can't
predict, better than anyone else can, how Botswana is going to decide cases
if RFC 1591 applies.  Does that mean it is stupid or unrealistic to propose
RFC 1591?  Of course not.  Is it grounds for rejecting any talk of applying
RFC 1591, because we don't know exactly how it will be followed in all 180
countries?  Of course not.

Returning to the IAHC proposal, I will be the first to admit I don't know
exactly how Botswana's courts would decide a domain name case if the IAHC
proposal were in effect.  Does that mean it is stupid or unrealistic to
propose the IAHC proposal?  Of course not.  Is it grounds for rejecting any
talk of following the IAHC proposal, because we don't know exactly how it
will be followed in all 180 countries?  Of course not.

Yet that's exactly what we are seeing here.  People are attacking the IAHC
proposal because most of its proponents are from common-law countries, and
the world contains many civil-law countries.  One commenter, criticizing my
writings, challenged me to travel to all the courts of the world and bring
back declarations regarding how the IAHC proposal would affect decisions in
each of those courts.  My failure to do so would apparently count as a
reason to reject the IAHC proposal or any and all parts of it.

Ridiculous.  The IAHC proposal would, in fact, be a meaningful influence on
the deliberations of the courts of all countries.  This is especially so
given that the International Trademark Association has also commented on
the subject, and along the same lines.  I know this, and I don't belong to
INTA.  Experienced lawyers would say the same thing.

>So, if they just stayed out
>of it then they would have to....oh wait, I guess they WOULDN'T HAVE TO
>DO ANYTHING, would they.  You don't have to have a complicated policy if
>you STAY OUT OF IT.  You don't have to worry about how courts will
>handle anything in different countries if you STAY OUT OF IT.

Again see the comments above about the two or more meanings of "stay out of
it".  Under RFC 1591, or under the IAHC proposal, in either case they are
"staying out of it".

>So, Carl, I think you are sidestepping the issue here.  If you stay out
>of it you don't need to worry about all of this.  You see in the
>alternative where you stay out of it, you don't care about how it
>works.  As your own document indicates, you just do what the court tells
>you.

Under RFC 1591, or under the IAHC proposal, the registration authority will
"just do what the court tells [it]".  The distinction you purport to draw
is, so far as I can see, illusory.